Cheapskate Porn Viewers Dodge Bullet in 7th Cir myVidster Appeal

By Robyn Hagan Cain on August 3, 2012 3:02 PM

Copyright holders can be rather prickly about their protecting their works. For example, Flava Works, a porn production company, gets antsy when people copy their pay-to-play content and host it for free on other websites. When Flava Works discovered its flava-ful content on MyVidster.com, it joined forces with the Motion Picture Association of America to sue MyVidster for copyright infringement.

Last year, U.S. District Judge John Grady agreed with Flava Works and the Motion Picture Association of American that myVidster, a social video bookmarking site, infringed on copyrighted material by embedding Flava Works' videos and reaping the ad revenue rewards. Judge Grady concluded that myVidster was not protected under Digital Millennium Copyright Act (DMCA) safe harbor provision.

Here's how myVidster works: When a user submits a video to be posted on myVidster, myVidster "crawls" the host website, pulls information about the video file, and either copies or creates a thumbnail image of the video. MyVidster then embeds the video -- instead of a link to the original site -- on its own site. When a myVidster visitor clicks on a video that is posted there, the video plays directly on myVidster.

Flava Works found numerous myVidster pages with embedded Flava Works videos that were streamed through third-party hosting sites, so it sent myVidster DMCA takedown notices. MyVidster claimed that it complied with the takedown notices, but Flava Works still filed a copyright infringement lawsuit, Ars Technica reports.

The question before the Seventh Circuit Court of Appeals was whether there's a distinction between embedding videos and hosting videos as a direct infringer. According to Judge Richard Posner -- he's a court of appeals judge, isn't he? -- there is.

"As the record stands ... myVidster is not an infringer, at least in the form of copying or distributing copies of copyrighted work. The infringers are the uploaders of copyrighted work. There is no evidence that myVidster is encouraging them, which would make it a contributory infringer," Judge Posner wrote for the unanimous panel.

According to Posner, a myVidster visitor doesn't infringe on copyright unless he makes a copy of the video that he's watching. "His bypassing Flava's pay wall by viewing the uploaded copy is equivalent to stealing a copyrighted book from a bookstore and reading it. That is a bad thing to do (in either case) but it is not copyright infringement."

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U.S. Seventh Circuit features news and information from the U.S. Court of Appeals for the Seventh Circuit, which hears appeals from U.S. District Courts in Illinois, Indiana and Wisconsin. This blog also features news that would be of interest to legal professionals practicing in the 7th Circuit. Have a comment or tip? Write to us.